Citation Nr: 0417665
Decision Date: 07/01/04 Archive Date: 07/14/04
DOCKET NO. 97-00 288A ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for hypertension
secondary to a service-connected disability.
2. Entitlement to service connection for arteriosclerotic
heart disease secondary to a service-connected disability.
3. Entitlement to service connection for diabetes mellitus
as secondary to Agent Orange (AO) exposure.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Suzie S. Gaston, Counsel
INTRODUCTION
The veteran served on active duty from January 1961 to July
1968.
This matter came before the Board of Veterans' Appeals
(hereinafter Board) on appeal from rating decisions of the
Department of Veterans Affairs (VA). By a rating action of
June 1996, the New York, New York Regional Office (RO) denied
the veteran's claims of entitlement to service connection for
hypertension and a heart condition as secondary to service-
connected post-traumatic stress disorder (PTSD). The veteran
perfected a timely appeal of that decision. A rating action
in December 1997 confirmed and continued the denial of the
veteran's claims. The record indicates that the veteran
moved to Florida in 1999; and, in December 2000, jurisdiction
over his case was transferred to the RO in St. Petersburg,
Florida.
By a rating action of April 2002, the RO denied the veteran's
claim of entitlement to service connection for diabetes
mellitus type II a secondary to exposure to herbicides. The
veteran perfected a timely appeal of that decision.
On February 10, 2004, the veteran appeared and offered
testimony before the undersigned Veterans Law Judge in
Washington, D.C. A copy of the hearing transcript has been
associated with the claims folder. At the hearing, the
veteran submitted additional evidence for which he has
provided written waiver of RO review under 38 C.F.R.
§ 20.1304.
The issues of service connection for heart disease and
hypertension are addressed in the REMAND portion of the
decision below and is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. VA has made all reasonable efforts to assist the veteran
in the development of his claims and has notified him of the
information and evidence necessary to substantiate those
claims.
2. The veteran has provided credible and competent testimony
which establishes that his service aboard a ship in the
waters offshore Vietnam during 1965 and 1966 involved duty or
visitation on the ground in Vietnam and the record contains a
current diagnosis of diabetes mellitus.
3. The competent medical evidence suggests that the
veteran's diabetes mellitus caused or aggravated his
currently diagnosed arteriosclerotic heart disease.
CONCLUSION OF LAW
Diabetes mellitus may be presumed to have been incurred
during the veteran's active naval service. 38 U.S.C.A.
§§ 1110, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307,
3.309 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA). During
the pendency of this appeal, on November 9, 2000, the
President signed into law the VCAA, Pub. L. No. 106-475, 114
Stat. 2096 (2000). This Act is applicable to all claims
filed on or after the date of its enactment, November 9,
2000, or filed before that date and not yet final. This new
law eliminates the concept of a well-grounded claim and
redefines VA's obligations insofar as properly notifying and
assisting veterans in developing their claims. In view of
the Board's decision to allow the veteran's claims for
service connection for diabetes mellitus and arteriosclerotic
heart disease, there is no need to discuss VA's compliance
with the VCAA.
Factual Background. The records indicate that the veteran
served on active duty from January 1961 to July 1968. He was
awarded the Vietnam Service Medal, the Navy Unit Commendation
Medal, the Republic of Vietnam Campaign Medal, and the
National Defense Service Medal. His service medical records
are negative for any complaints, findings or diagnoses of
diabetes mellitus or heart disease. The service medical
records indicate that the veteran was admitted to a hospital
in May 1968 after having taken numerous pills in a suicide
attempt. The veteran was discharged from the hospital with a
diagnosis of depressive reaction. On the occasion of his
initial VA examination in August 1968, the veteran was
diagnosed with depressive reaction in partial remission,
chronic. This examination was negative for any clinical
findings or diagnoses of heart disease or diabetes mellitus.
By a rating action of November 1968, the RO granted service
connection for depressive reaction and assigned a 10 percent
disability rating, effective July 6, 1968.
VA medical records dated in 1973 and 1982 reflect clinical
evaluation and treatment for the veteran's psychiatric
disorder and unrelated physical disabilities.
VA medical records, dated from February 1994 through January
1997, reflect that the veteran received clinical evaluation
and treatment for several disabilities, including PTSD,
coronary artery disease, and diabetes mellitus. The records
indicate that the veteran was admitted to a VA hospital in
February 1994 after he developed central squeezing chest
discomfort accompanied by sweating and increased shortness of
breath. There was no nausea or vomiting. The pain radiated
to the left arm. There was no dizziness or palpitations.
The episode lasted about 35 minutes and subsided
spontaneously. On examination, his blood pressure readings
were reported as 200/120 in the right arm and 188/107 in the
left. The chest was clear with no bruits. Regular rate and
rhythm, S1/S2, no S3/S4 or murmurs were noted. Upon
admission he was treated with IV Nitroglycerin. He
subsequently underwent cardiac catheterization which was
normal. The impression was moderate LV systolic and
diastolic dysfunction and three-vessel coronary disease. The
discharge diagnosis was status-post non-Q wave MI, coronary
artery disease. The veteran was readmitted to the hospital
in July 1994, due to an episode of chest pain that
spontaneously resolved. It was noted that the veteran had a
history of coronary artery disease and diabetes mellitus
since 1982. The veteran was again seen in October 1994 for
complaints of chest pain. It was noted that he was admitted
for acute myocardial infarction; he was treated with
medication. The discharge diagnoses were coronary artery
disease and diabetes mellitus.
In October 1996, the veteran was referred to a VA hospital
for PTSD treatment. It was noted that his past medical
history was significant for longstanding coronary artery
disease and prior to admission, he had a history of prior
myocardial infarction. His coronary artery disease was
described as being diffuse and inoperable. It was also noted
that he has been an insulin-dependent diabetic for several
years and had hypertension as well. A chest x-ray revealed
no acute disease. During his period of hospitalization, the
veteran was seen by endocrinology and treated for his
diabetes. He was also seen by cardiology due to complaints
of chest pain. The discharge diagnoses were PTSD, insulin-
dependent diabetes mellitus, hypertension, angina pectoris,
coronary artery disease, and status post myocardial
infarction.
Received in October 1998 were veteran's military personnel
records as well as internet articles regarding the operations
undertaken by the USS Krishna. The report indicates that on
June 1, 1965, the Krishna transferred to SERVPAC. After
minor renovations in Guam and Subic Bay, Krishna took up
station at An Thoi, Phu Quoc Island, RVN, in the Gulf of
Thailand. The administrative records indicate that the
veteran was authorized to wear the Vietnam Service Medal for
service on board the USS Krishna.
Also received in October 1998 were VA progress notes, dated
from February 1997 to October 1998, which show that the
veteran received ongoing clinical evaluation and treatment
for several disabilities including diabetes mellitus type II
and heart disease. Received in January 2001 were duplicate
VA treatment reports, dated from February to March 1994, the
findings of which were reported above.
The veteran was afforded a VA examination in March 2001,
which consisted of an evaluation of the service-connected
PTSD. The pertinent diagnoses were PTSD, moderate to severe;
and diabetes, peripheral neuropathy, coronary artery disease
and hypertension.
By a rating action of March 2001, the RO increased the
evaluation for the service-connected PTSD from 10 percent to
50 percent, effective June 10, 1994.
Received in April 2002 were VA progress notes, dated from
March 2001 to April 2002, showing treatment for several
disabilities including coronary artery disease status post 3
vessel CABG in September 2000 and diabetes mellitus type 2.
These records indicate that the veteran was seen on a regular
basis for diabetes management.
Of record is a report of contact (VA Form 119), dated April
2, 2002, indicating that the veteran's daughter had been
awarded benefits for spina bifida.
The veteran was afforded a VA examination in January 2003, at
which time it was reported that he was diagnosed with
diabetes mellitus in 1982; at that time, he was having
symptoms of frequency, excessive thirst, excessive fatigue,
and weight loss. The veteran claimed to have been exposed to
Agent Orange during his period of active duty in the Navy
when he was stationed in and around Vietnam. It was also
reported that the veteran had a heart attack in 1989 that was
diagnosed as myocardial infarction; after a period of
conservative therapy, he had a coronary artery bypass graft
surgery in 2001. He still complained of chest pain,
shortness of breath, occasional wheezing, and minimal
swelling around the right ankle. The veteran admitted to
smoking one pack of cigarettes daily for the past 30 to 35
years. On examination, the veteran was described as well
nourished, well developed and in no acute distress, but he
appeared to be chronically ill. Breath sounds were coarse
and rough. There were no gross rales, but there were
occasional expiratory wheezes. Respiratory rate was normal.
Blood pressure was 150/76. There was a 2-3/6 systolic murmur
in the aortic and pulmonic areas with radiation down the left
sternal border. PMI was slightly displaced to the left.
Pulses were negligible and there was minimal edema around the
right ankle area. The pertinent diagnoses were diabetes
mellitus, arteriosclerotic coronary heart disease, and post
coronary artery bypass graft. The examiner stated that it
was his opinion that the cardiovascular problems that the
veteran has are not likely caused by his PTSD, nor id he feel
that they are worsened by his emotional difficulties; he
noted that the more likely explanation is the significant
hyperlipidemia, chronic use of tobacco, and excessive weight.
However, the examiner explained that it is true that diabetes
mellitus will enhance the progression of arteriosclerotic
vascular disease and this may be a contributing factor to the
veteran's cardiovascular problems in view of the fact that he
has been a diabetic for 20 years under somewhat questionable
control.
At his personal hearing in February 2004, the veteran
indicated that he served in Vietnam from 1965 to 1966; he
stated that he served aboard the USS Krishna, which was
stationed along the shores of Vietnam. The veteran indicated
that the ship was anchored about 300 feet from Phu Quoc
Island, which is part of Vietnam. He reported going to
Thailand for rest and relaxation. He went to the island of
Phu Quoc about 3 to 4 times per week. The veteran maintained
that a doctor at the Northrop VA medical center indicated
that his cardiovascular condition developed as a result of
PTSD.
Legal analysis. Service connection will be granted if it is
shown that a veteran has a disability resulting from an
injury or disease contracted in the line of duty, or for
aggravation of a preexisting injury or disease in active
military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R.
§ 3.303 (2003). To establish service connection for a
disability, a claimant must submit (1) medical evidence of a
current disability, (2) medical evidence, or in certain
circumstances lay testimony, of in-service incurrence or
aggravation of an injury or disease, and (3) medical evidence
of a nexus between the current disability and the in-service
disease or injury. Pond v. West, 12 Vet. App. 341, 346
(1999). Where the determinative issue involves a medical
diagnosis, competent medical evidence is required. This
burden may not be met by lay testimony because laypersons are
not competent to offer medical opinions. Espiritu v.
Derwinski, 2 Vet. App. 492, 494-95 (1992).
Service connection may also be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, established that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (2001).
Where a veteran served ninety days or more during a period of
war and certain chronic diseases, including primary anemia,
cardiovascular-renal disease, diabetes mellitus, encephalitis
lethargica residuals, and peptic ulcers, become manifest to a
degree of 10 percent within one year from date of termination
of such service, such disease shall be presumed to have been
incurred in service even though there is no evidence of such
disease during the period of service. This presumption is
rebuttable by affirmative evidence to the contrary. 38
U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309
(2003).
Service connection may also be granted for disability which
is proximately due to or the result of a service-connected
disease or injury. 38 C.F.R. § 3.310(a) (2003). Moreover,
where a service-connected disability causes an increase in,
but is not the proximate cause of, a nonservice-connected
disability, the veteran is entitled to service connection for
that incremental increase in severity attributable to the
service-connected disability. Allen v. Brown, 7 Vet. App.
439, 448 (1995).
Additionally, a veteran who, during active military, naval,
or air service, served in the Republic of Vietnam during the
period beginning on January 9, 1962, and ending on May 7,
1975, and has a disease listed at § 3.309(e) shall be
presumed to have been exposed during such service to an
herbicide agent, unless there is affirmative evidence to
establish that the veteran was not exposed to any such agent
during that service. Service in the Republic of Vietnam
includes service in the waters offshore and service in other
locations if the conditions of service involved duty or
visitation in the Republic of Vietnam. 38 C.F.R.
§§ 3.307(a)(6), 3.313 (2003).
If a veteran was exposed to a herbicide agent during active
military, naval, or air service, the following diseases shall
be service-connected if the requirements of 38 U.S.C.A.
§ 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though
there is no record of such disease during service, provided
further that the rebuttable presumption provisions of 38
U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied:
chloracne or other acneform diseases consistent with
chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's
lymphoma, acute and subacute peripheral neuropathy, PCT,
prostate cancer, respiratory cancers (cancer of the lung,
bronchus, larynx, or trachea), and certain soft-tissue
sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's
sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e).
Effective July 9, 2001, Type II diabetes (also known as Type
II diabetes mellitus or adult-onset diabetes) was added to a
list of diseases subject to presumptive service connection
under 38 C.F.R. § 3.309(e). See 66 Fed. Reg. 23,166 (May 8,
2001).
The diseases listed at 38 C.F.R. § 3.309(e) shall have become
manifest to a degree of 10 percent or more at any time after
service, except that chloracne or other acneform disease
consistent with chloracne and PCT shall have become manifest
to a degree of 10 percent or more within one year of
separation. 38 C.F.R. § 3.307(a)(6)(ii).
In order to rebut this presumption of service incurrence,
there must be affirmative evidence to the contrary or
evidence to establish that an intercurrent injury or disease
which is a recognized cause of any of the specified diseases
or disabilities has been suffered between the date of
separation from service and the onset of any such diseases or
disabilities. 38 U.S.C.A. § 1113(a). Evidence which may be
considered in rebuttal of service incurrence of such disease
will be any evidence of a nature usually accepted as
competent to indicate the time of existence or inception of
disease, and medical judgment will be exercised in making
determinations relative to the effect of intercurrent injury
or disease. The expression "affirmative evidence to the
contrary" will not be taken to require a conclusive showing,
but such showing as would, in sound medical reasoning and in
the consideration of all evidence of record, support a
conclusion that the disease was not incurred in service. 38
C.F.R. § 3.307(d).
In claims for VA benefits, when there is an approximate
balance of positive and negative evidence regarding any issue
material to the determination of a matter, the VA shall give
the benefit of the doubt to the claimant. 38 U.S.C.
§ 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet.
App. 49, 54 (1990) (when a claimant seeks VA benefits, and
the evidence is in relative equipoise, the law dictates that
he or she shall prevail).
As above, the veteran's service medical records are silent
regarding any complaint or finding of diabetes mellitus.
Likewise, the post-service medical evidence of record is
negative for any notation of diabetes for many years after
service separation. In fact, the records indicate that
diabetes mellitus was not diagnosed until 1982, about 17
years after his service separation.
Effective July 9, 2001, VA added diabetes mellitus to the
list of diseases presumptively connected with exposure to
Agent Orange. See 66 Fed. Reg. 23,166-169 (May 8, 2001)
(codified at 38 C.F.R. § 3.309(e)). This amendment
implements a decision of the Secretary that there is a
positive association between exposure to herbicides used in
the Republic of Vietnam during the Vietnam era and the
subsequent development of Type-2 diabetes.
Under 38 CFR § 3.307(a)(6)(iii), a veteran who served in
Vietnam and develops a disease listed in § 3.309(e) is
presumed to have been exposed to herbicides. In this case,
the record indicates that the veteran served in the United
States Navy, and he served in Vietnam from 1965 to 1966. The
records also shows that the veteran served aboard the USS
Krishna off the coast of Vietnam during the Vietnam era. The
veteran, by his testimony at the hearing in February 2004,
provided competent and credible testimony which establishes
that his duties while assigned to the USS Krishna involved
work and visits on the ground in Vietnam. In addition, under
controlling VA regulations, the veteran's daughter has been
awarded disability benefits for spina bifida in recognition
of the veteran's service in Vietnam. Therefore, VA has
conceded veteran's exposure to agent orange. Moreover, the
record contains competent medical evidence of a current
diagnosis of diabetes mellitus, which has been shown to be
compensably disabling. See 38 C.F.R. § 4.119, Code 7913.
The law and regulations permitting presumptive service
connection for diabetes, based on Vietnam Agent Orange
exposure, are the end result of a number of medical studies
showing an etiological nexus between herbicides and diabetes.
With regard to the presumption of service connection, the
Board finds that there is insufficient affirmative evidence
to the contrary, as necessary to rebut the presumption.
Thus, the Board finds that service connection for diabetes
mellitus on a presumptive basis is warranted.
Accordingly, the Board finds that the veteran's diabetes was
incurred in service on a presumptive basis, and service
connection is warranted. The benefit-of-the-doubt rule has
been considered in making this decision. 38 U.S.C.A.
§ 5107(b).
ORDER
Service connection for diabetes mellitus is granted.
REMAND
Regarding the remaining issues of service connection for
heart disease and hypertension on a secondary basis, the
Board observes that the medical evidence of record is unclear
as to the date of onset and etiology of these disabilities.
In this regard, the Board notes that VA treatment records
show that the veteran has had a longstanding history of
treatment for hypertension. A VA hospital summary, dated in
July 1994, indicated that the veteran had had hypertension
for many years. On the occasion of his most recent VA
examination in January 2003, it was reported "this condition
was picked up about 20 years ago, at which time he had a mini
stroke." The examiner indicated that diabetes mellitus
would enhance the progression of arteriosclerotic vascular
disease and might be a contributing factor to the veteran's
cardiovascular problems.
The United States Court of Appeals for Veterans Claims
(Court) has held that when aggravation of a non-service-
connected condition is proximately due to or the result of a
service-connected condition, a veteran shall be compensated
for the degree of disability (but only that degree) over and
above the degree of disability existing prior to the
aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). The
Board has determined that service connection is warranted for
diabetes mellitus. Judicial interpretation of the matter of
secondary service connection as embodied in 38 C.F.R. § 3.310
requires consideration of whether the service-connected
disability either causes or aggravates another condition.
Id. There is no indication that the RO considered any
application of the Allen decision to the question of whether
any portion of the veteran's diagnosed heart disease and
hypertension are part of, or related to, the diabetes
disability. Adjudication on this basis is therefore
indicated.
When the medical evidence is inadequate, VA must supplement
the record by seeking an advisory opinion or ordering another
medical examination. Halstead v. Derwinski, 3 Vet. App. 213
(1992). Also, under VCAA the duty to assist includes
providing a medical examination or a medical opinion when
such is necessary to make a decision on the claim. 38 U.S.C.
§ 5103A(d) (West 2002).
In light of the foregoing, additional development is
warranted with respect to the issues of entitlement to
service connection for heart disease and hypertension.
Accordingly, the case is remanded to the RO via the Appeals
Management Center (AMC), in Washington, DC. The following
actions are to be performed:
1. The RO should ensure that the
notification requirements set forth at 38
U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b)(1) are fully complied with and
satisfied. This includes notifying the
veteran (1) of the information and
evidence not of record that is necessary
to substantiate his claim, (2) of the
information and evidence that VA will
seek to provide, and (3) of the
information and evidence that he is
expected to provide. The veteran should
also be requested to provide any evidence
in his possession that pertains to the
claim.
2. The RO should ask the veteran to
identify all VA and non-VA healthcare
providers that have treated him for heart
disease and/or hypertension since 2001.
Make arrangements to obtain all
identified treatment records that have
yet to be associated with the claims
file. If the RO is unable to obtain any
pertinent evidence identified by the
veteran, it should so inform the veteran
and request him to submit the outstanding
evidence.
3. The RO should schedule the veteran
for a VA examination by a physician with
the expertise to assess the nature and
etiology of his heart disease and
hypertension. The claims file must be
made available to the examiner prior to
the requested examination. The examiner
should indicate in the report that the
claims file was reviewed. All necessary
tests should be conducted.
The questions to be answered by the
appropriate examiner are:
(a) Whether it is at least as likely as
not (i.e., is there at least a 50 percent
probability) that the veteran's heart
disease and/or hypertension was either
(i) caused by or (ii) aggravated by PTSD;
or
(b) Whether it is at least as likely as
not (i.e., is there at least a 50 percent
probability) that the veteran's heart
disease and/or hypertension was caused by
or aggravated by diabetes mellitus.
4. Thereafter, the RO should review the
record to ensure that such is adequate
for appellate review. After any
indicated corrective action has been
completed, the RO should again review the
record and readjudicate the veteran's
claim. If the benefit sought on appeal
remains denied, the veteran and his
representative should be furnished a
supplemental statement of the case, which
contains notice of all relevant actions
taken on the claim for benefits, to
include a summary of the evidence and
applicable law and regulations considered
pertinent to the issue currently on
appeal. An appropriate period of time
should be allowed for response.
Following completion of the requested development, the case
should be returned to the Board, if otherwise in order. The
purposes of this REMAND are to further develop the record and
to accord the veteran due process of law. By this REMAND,
the Board does not intimate any opinion as to the merits of
the case, either favorable or unfavorable, at this time. No
action is required of the veteran until he is notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
______________________________________________
Gary L. Gick
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
FORM
JUN
2003
(RS)
4597
Page
1
CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
FORM
JUN
2003
(RS)
4597
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